Amicus Curiae Brief — Buchanan v. Stanships, Inc.

PUP Tie vuuTl, views

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No. 87-133

§Jn the Supreme Court of the Gunite

OCTOBER TERM, 1987

MERCILYN BUCHANAN, ET AL., PETITIONERS

v.

STANSHIPS, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Atiorney General

DOUGLAS N. LETTER

ScoTT R. MCINTOSH

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Rule 4(a)(4) of the Federal Rules of Appellate Pro-

cedure provides that if any party files a timely postjudg-

ment motion to alter or amend the judgment under Rule

59(e) of the Federal Rules of Civil Procedure, a notice of

appeal filed prior to disposition of the motion “shall have

no effect.” The question presented is whether a postjudg-

ment application for costs by the prevailing party in the

district court constitutes a motion to alter or amend the

judgment under Fed. R. Civ. P. 59(e) and therefore

renders a prior notice of appeal invalid under Fed. R.

App. P. 4(a)(4).

(1)

TABLE OF CONTENTS

Page

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) TABLE OF AUTHORITIES

Cases:

Acosta v. Louisiana Dep’t of Health & Human Resources,

Ee) re 5, 11

Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., 803

sc ccc crccecscccceceess 6

Beckwith Machinery Co. v. Travelers Indemnity Co.,

eg 5

Budinich v. Becton-Dickinson & Co., cert. granted, No.

EE 6

Citizens Coalition for Block Grant Compliance, Inc. v.

City of Euclid, 717 F.2d 964 (6th Cir. 1983) .......... 8

Charles v. Daley, 799 F.2d 343 (7th Cir. 1986) .......... 12, 13

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

TEE enc cece bese eesececcs )

Delta Air Lines, Inc. v. Augusi, 450 U.S. 346 (1981) ..... 8

Durham v. Kelly, 810 F.2d 1500 (9th Cir. 1987) ......... 7

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ....... 4

Farmer v. Arabian Am. Oil Co., 379 U.S. 227 (1964) .... 8

FCC v. League of Women Voters, 468 U.S. 364 (1984) ... y

F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d

Nc. ait eccece 6

Gorden v. Heimann, 715 F.2d 531 (11th Cir. 1983) ...... 5

Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d

665 (Sth Cir. 1986), cert. denied, No. 85-2015 (Nov. 3,

ES OS Ee 3, 10, 11

Harris v. McCarthy, 790 F.2d 753 (9th Cir. 1986) ....... S

International Ass’n of Bridge & Ironworkers’ Local Union

75 v. Madison Indus., 733 F.2d 656 (9th Cir. 1984) .... 6

Knighton v. Watkins, 616 F.2d 795 (Sth Cir. 1980) ...... 5,8

Lucas v. Florida Power & Light Co., 729 F.2d 1300

Te ete ete ccccececesss 6, 10

Metcalf v. Borba, 681 F.2d 1183 (9th Cir. 1982) ........ 5

(111)

IV

Cases — Continued: Page

Morey v. Barrington Press, Inc., cert. denied, No. 87-32

OE, GR, GE ok co ccccccctiseccniusciesuvucscess 6

Public Law Enforcement Inst. v. United States Dep’t of

Justice, 744 F.2d 181 (D.C. Cir. 1984) ............... 8

Skagerberg v. Oklahoma, 797 F.2d 881 (10th Cir. 1986) .. 13

Smillie v. Park Chemical Co., 710 F. 2d 271 (6th Cir.

ED, cconcGceseesceseUrseeetssessdsibhbeoenesce 5

Spray-Rite Serv. Co. v. Monsanto Co., 684 F.2d 1226

(7th Cir. 1982), aff'd, 465 U.S. 752 (1984) ............ 5

White v. New Hampshire Dep’t of Employment Sec.,

Ge es GP ED oc cen eerecsestsccsccoenseunecs 3-4, 7,8

Statutes and rules:

Death on the High Seas Act, 46 U.S.C. (& Supp. III) 761

OO, civ idindecesccccccéseensenscctebeccdedeccus l

ns. cnn e6ensnese seer deenekesetees 4,7,8

Fed. R. App. P.:

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PEE ccnctvctnvaceencerovascoeéeues eee |.

Fed. R. Civ. P.:

Rol. oe ot bbb ans SESE ES OO 48N SS EEEENES 11

SEED go k.00b00sesetssnseseentanevestetens

IEE. 5500.00 006 6s4600656000640K64 2, 7, 8, 10, 11

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226 & 8. Gh

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ee & PPTL TTITTT TTT i)

Miscellaneous:

Comment, Taxation of Costs in Federal Court—A

Proposal, 25 Am. U. L. Rev. 877 (1976) ............. 10

10 C. Wright, A. Miller & M. Kane, Federal Practice and

Prpcntees COGS GE, BEG 6 cc ccc ccc eesccnsceves: 10

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-133

MERCILYN BUCHANAN, ET AL., PETITIONERS

V.

STANSHIPS, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s invita-

tion to the Solicitor General to express the views of the

United States.

STATEMENT

1. This case arises out of a claim brought by peti-

tioners in the United States District Court for the Middle

District of Louisiana under the Death on the High Seas

Act, 46 U.S.C. (& Supp. III) 761 et seg. Following a bench

trial, the district court ruled for respondents on January

20, 1987. On January 26, 1987, the district court formally

entered a judgment dismissing petitioners’ suit with preju-

dice (Pet. App. 15). The judgment contained no reference

to costs.

On January 27, 1987, the day after the entry of judg-

ment, petitioners filed a notice of appeal in the district

court pursuant to Rule 3 of the Federal Rules of Appellate

Procedure (Pet. App. 16). Two days later, on January 29,

respondents filed an applicaticn for the allowance of

(1)

2

costs (id. at 17). The Federal Rules of Civil Procedure con-

template that the prevailing party will present the clerk of

the district court with a bill of costs, which the clerk allows

unless the losing party files a motion contesting his liabili-

ty for costs within five days. See Fed. R. Civ. P. 54(d).

Rather than follow this procedure, however, respondents

presented the district court here with what they styled a

“Motion to Alter or Amend Judgment.” The motion asked

the district court to amend its judgment of January 26 “to

reflect that [respondents] are entitled to recover their tax-

able costs against [petitioners].” The motion asserted that

it was filed “pursuant to the provisions of Rule 52 and

Rule 59 of the Federal Rules of Civil Procedure.” Pet.

App. 17.

The district court issued an order granting respondents’

motion on January 30, 1987, three days after petitioners

had filed their notice of appeal (Pet. App. 18). Petitioners

did not file a second notice of appeal following the district

court’s disposition of the costs motion. Respondents

subsequently filed a motion in the Fifth Circuit seeking

dismissal of petitioners’ appeal for lack of subject matter

jurisdiction (id. at 19). Respondents relied on Rule 4(a)(4)

of the Federal Rules of Appellate Procedure, which pro-

vides in relevant part that if a postjudgment motion to

alter or amend the judgment under Fed. R. Civ. P. 59(e) is

filed in timely fashion in the district court, the time for ap-

peal shall run from the date of the district court’s order

disposing of the motion and “{a] notice of appeal filed

before the disposition [of the motion] shall have no

effect.” Respondents contended that their postjudgment

motion for the allowance of costs was a Fed. R. Civ. P.

§9(e) motion and that, in consequence, petitioners’ notice

of appeal — which had been filed before the disposition of

the motion—was jurisdictionally invalid under Fed. R.

App. P. 4(a)(4).'

' Respondents also asserted that their postjudgment motion had

been a Fed. R. Civ. P. 52(b) motion for additional findings of fact.

3

2. The Fifth Circuit granted respondents’ motion and

dismissed the appeal (Pet. App. 25-27). The Fifth Circuit

based its ruling on its prior decision in Harcon Barge Co.

v. D & G Boat Rentals, Inc., 784 F.2d 665 (1986) (en

banc), cert. denied, No. 85-2015 (Nov. 3, 1986). In Har-

con Barge, the Fifth Circuit held (784 F.2d at 667) that:

[A]ny post-judgment motion to alter or amend the

judgment served within ten days after the entry of the

judgment, other than a motion to correct purely

clerical errors covered by Rule 60(a), is within the

unrestricted scope of Rule 59(e) and must, however

designated by the movant, be considered as a Rule

59(e) motion for purposes of Fed.R.App.P. 4(a)(4).

The Fifth Circuit concluded in the present case, as it had in

Harcon Barge itself, that a postjudgment motion respect-

ing costs comes within “the unrestricted scope of Rule

59(e)” when filed within 10 days of the entry of judgment

(Pet. App. 26-27). Following this approach, the Fifth Cir-

cuit concluded that petitioners’ notice of appeal, filed

prior to the district court’s disposition of respondents’ mo-

tion for costs, is invalid under Fed. R. App. P. 4(a)(4) and

therefore does not vest the court of appeals with jurisdic-

tion over the appeal (Pet. App. 26-27.).

DISCUSSION

The Fifth Circuit’s decision in this case, which holds

that a postjudgment motion for costs filed within 10 days

after entry of judgment constitutes a motion to alter or

amend the judgment under Fed. R. Civ. P. 59(e), is incon-

sistent both with this Court’s decision in White v. New

Under Fed. R. App. P. 4(a)(4), a Fed. R. Civ. P. 52(b) motion has the

same jurisdictional consequences as a Fed. R. Civ. P. 59(e) motion.

Respondents’ postjudgment motion itself, however, made no request

for additional findings. See Pet. App. 17.

4

Hampshire Dep’t of Employment Sec., 455 U.S. 445

(1982), and with the treatment accorded costs by the

Federal Rules of Civil Procedure. The Fifth Circuit’s deci-

sion directly conflicts with recent decisions of the Ninth

and Eleventh Circuits as well. While the underlying

jurisdictional issue in this case may not be significant

enough to demand plenary consideration by this Court,

the Fifth Circuit’s decision is sufficiently at odds with this

Court’s holding in White and with the policies of the

Federal Rules that summary reversal may be warranted.

1. In White, this Court unanimously held that a post-

judgment application for attorneys’ fees under 42 U.S.C.

1988 does not corgitute a Fed. R. Civ. P. 59(e) motion to

alter or amend the judgment. See 455 U.S. at 450-455. The

Court began its analysis in White by invoking the prevail-

ing view of the courts of appeals, “[cJonsistent[] with th[e]

original understanding” of Fed. R. Civ. P. 59(e), that Rule

59(e) “support[s] [only] reconsideration of matters prop-

erly encompassed in a decision on the merits” (455 U.S. at

451). In contrast, the Court noted, “a request for

attorney’s fees under § 1988 raises legal issues collateral to

the main cause of action—issues to which Rule 59(e) was

never intended to apply” (ibid. (footnote omitted)).

Because attorney’s fees are available under Section 1988

only to “prevailing parties,” Section 1988 fee applications

“will therefore require an inquiry separate from the deci-

sion on the merits” which “cannot even commence until

one party has ‘prevailed’” (455 U.S. at 451-452).

Moreover, attorneys’ fees under Section 1988 “are not

compensation for the injury giving rise to an action” and

therefore cannot be characterized as another “element of

‘relief’ ” (455 U.S. at 452). The Court therefore concluded

that “ ‘unlike a motion to alter or amend a judgment{,]’ ”

an application for attorney’s fees “ ‘does not imply a

change in the judgment, but merely seeks what is due

because of the judgment’” (ibid. (emphasis added),

quoting Knighton v. Watkins, 616 F.2d 795, 797 (Sth Cir.

1980)).?

In cases like White, where the prevailing party’s entitle-

ment to attorneys’ fees is governed by a separate fees

statute rather than by the provision creating the cause of

action, the courts of appeals uniformly have held that

White precludes treating postjudgment attorneys’ fee mo-

tions as Fed. R. Civ. P. 59(e) motions. See, e.g., Gordon

v. Heimann, 715 F.2d 531, 536-539 (1ith Cir. 1983);

Spray-Rite Serv. Co. v. Monsanto Co., 684 F.2d 1226,

1247-1248 (7th Cir. 1982), aff'd on other grounds, 465

U.S. 752 (1984); Metcalf v. Borba, 681 F.2d 1183,

1184-1185 (9th Cir. 1982). As a result, the filing of such

motions does not affect the timeliness of notices of appeal!

under Fed. R. App. P. 4(a)(4). See, e.g., Smillie v. Park

Chemical Co., 710 F.2d 271, 273-274 (6th Cir. 1983).3

2 In Acosta v. Louisiana Dep’t of Health & Human Resources, No.

85-1500 (June 30, 1986), the Court summarily affirmed a Fifth Circuit

decision that treated a motion seeking reconsideration of an award of

attorneys’ fees as a Fed. R. Civ. P. 59(e) motion. The issue before this

Court in Acosta, however, did not involve an original application for

attorneys’ fees; it involved a motion for reconsideration of a previous

order awarding fees. In any event, the Court did not address the ques-

tion whether a postjudgment motion relating to attorneys’ fees may be

made under Rule 59(e); instead, the Court simply assimed that a valid

Rule 59(e) motion had been made and then addressed the question

whether a notice of appeal filed after a district court’s announcement

of its ruling on a Rule 59(e) motion, but before entry of judgment on

that ruling, is valid under Fed. R. App. P. 4(a)(4). Acosta therefore

does not appear to signal a retreat from White’s holding that at-

torneys’ fee motions are collateral to the merits.

> In cases where attorneys’ fees are sought as part of the relief pro-

vided by the underlying cause of action, rather than under a separate

Statute or rule, the courts of appeals have divided over the applicabili-

ty of White. Compare, e.g., Beckwith Machinery Co. v. Travelers In-

demnity Co., 815 F.2d 286, 288 (3d Cir. 1987) ( White’s reasoning does

not apply in cases where the fee “award arises as an integral part of the

merits of the dispute,” such as where the contract underlying a breach-

of-contract claim provides for fees as an element of damages), and

6

Two courts of appeals, the Ninth and Eleventh Circuits,

have found White’s reasoning to be controlling in cases in-

volving postjudgment motions that geeks costs rather than

attorneys’ fees. In Lucas v. Florida Power & Light Co.,

729 F.2d 1300 (1984), the Eleventh Circuit expressly held

that an otherwise timely notice of appeal is not rendered

void under Fed. R. App. P. 4(a)(4) by the filing of a post-

judgment motion regarding the awarding of costs. Follow-

ing this Court’s reasoning in White, the Eleventh Circuit

concluded that Fed. R. Civ. P. 59(e) motions involve

“matters encompassed in a decision on the merits of the

dispute, * * * not matters collateral to the merits” (729

F.2d at 1301). The court of appeals reasoned that a motion

for costs does not constitute a Rule 59(e) motion under

this standard because it “relates exclusively to the col-

lateral question of what is due because of the judgment”

(729 F.2d at 1301 (citing White)). The court of appeals

noted that although “[t]he narrow issue” in White involved

attorneys’ fees, White’s reasoning “applies with equal if

not greater force to costs, for costs must certainly be

regarded as collateral to the main cause of action in this

case” (id. at 1301 n.1). The Eleventh Circuit subsequently

reaffirmed Lucas in Alimenta (U.S.A), Inc. v. Anheuser-

Busch Cos., 803 F.2d 1160 (1986).

F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563 (2d Cir.

1985) (same), with /nternational Ass’n of Bridge & Ironworkers’ Local

Union 75 v. Madison Indus., 733 F.2d 656 (9th Cir. 1984) (all at-

torneys’ fee requests, including those predicated on a contract

underl .g the suit, “[are] collateral to [the] main action” under

White). See generally Morey v. Barrington Press, Inc., No. 87-32

(Oct. 13, 1987) (Brennan & White, JJ., dissenting from denial of cer-

tiorari) (reviewing cases). This Court recently has granted certiorari in

a case presenting this conflict. Budinich vy. Becion Dickinson & Co.,

cert. granted, No. 87-283 (Oct. 13, 1987). For reasons set out below,

we do not believe it necessary to hold the present petition pending the

decision in Budinich. See note 5, infra.

BEST AVAILABLE COPY

,

In Durham v. Kelly, 810 F.2d 1500 (1987), the Ninth

Circuit reached the same conclusion as did the Eleventh

Circuit in Lucas and Alimenta. The Ninth Circuit held ex-

pressly that “a motion to alter or amend a judgment to

award costs does not come within Rule 59(e)” and that

Fed. R. App. P. 4(a)(4)’s provisions regarding the jurisdic-

tional effects of Rule 59(e) motions therefore “are inap-

plicable with respect to a request for reconsideration con-

cerning costs” (810 F.2d at 1503). In so holding, the Ninth

Circuit pronounced itself “persuaded by the {Eleventh Cir-

cuit’s} atalysis in Lucas * * *” (ibid.).

2. The Fifth Circuit’s decision in this case squarely

conflicts with the decisions of the Ninth and Eleventh Cir-

cuits in Lucas, Alimenta, and Durham. The Fifth Circuit’s

decision also cannot be reconciled with this Court’s deci-

sion in White, and is at odds with the treatment of costs

under the Federal Rules of Civil Procedure.

a. Under White, as we note above, postjudgment ap-

plications for attorney’s fees do not constitute Fed. R. Civ.

P. 59(e) motions, at least where the entitlement to fees is

not created by the underlying cause of action. White's

reasoning applies with equal force to cases where the

prevailing party seeks costs rather than attorney’s fees. A

request for costs, no less than a request for attorneys’ fees,

“raises legal issues collateral to the main cause of ac-

tion —issues to which Rule 59(e) was never intended to ap-

ply.” White, 455 U.S. at 451 (footnote omitted). Costs

under Rule 54(d) of the Federal Rules of Civil Procedure,

like attorneys’ fees under Section 1988, are allowed only to

“prevailing parties.” As a result, applications for costs,

like applications for attorneys’ fees, “will * * * require an

inquiry separate from the decision on the merits —an in-

quiry that cannot even commence until one party has

‘prevailed.’ ” 455 U.S. at 451-452.* Moreover, costs under

+ The award of costs does not follow automatically from a judg-

ment on the merits. Although Rule 54(d) entitles prevailing parties to

Rule 54(d) of the Federal Rules of Civil Procedure, like

fees under Section 1988, “are not compensation for the in-

jury giving rise to an action” (455 U.S. at 452). And a post-

judgment application for costs, like a postjudgment mo-

tion for fees, “ ‘does not imply a change in the judgment,

but merely seeks what is due because of the judgment’ ”

(ibid. (quoting Knighton, 616 F.2d at 797)). In short, each

of the considerations that led this Court to hold Section

1988 fee motions to be outside the scope of Fed. R. Civ. P.

59(e) in White applies with equal force to costs that are

awarded under Fed. R. Civ. P. 54(d).°

recover costs “unless the court otherwise directs,” the district court’s

express authority to “otherwise direct[{]” vests it with discretion over

whether to award costs and what costs to award. See, e.g., Delta Air

Lines, Inc. v. August, 450 U.S. 346, 352-356 (1981); Farmer v. Arab-

ian Am. Oil Co., 379 U.S. 227 (1964). Before this discretion even can

be invoked, moreover, the district court may be called on to decide

whether the party seeking costs is indeed a “prevailing party.” As at-

torney’s fee litigation under Section i988 and other statutes has

shown, the answer to “prevailing party” questions may be less than ob-

vious. See generally Harris v. McCarthy, 790 F.2d 753, 759-760 (9th

Cir. 1986); Public Law Enforcement Inst. v. United States Dep't of

Justice, 744 F.2d 181, 183-184 (D.C. Cir. 1984); Citizens Coalition for

Block Grant Compliance, Inc. v. City of Euclid, 717 F.2d 964,

966-967 (6th Cir. 1983).

5 If costs were an integral part of the underlying cause of action,

their proper status under Fed. R. Civ. P. 59(e) might well turn on this

Court’s forthcoming decision in Budinich, which will address the

related question of how White applies to attorneys’ fees that accrue as

part of the underlying claim. See note 3, supra. In most cases,

however, costs are awarded not by virtue of the underlying cause of

action, but instead on the basis of the independent provisions of Fed.

R. Civ. P. 54(d). In this case, the Death on the High Seas Act contains

no provision regarding costs, which means that respondents’ asserted

right to costs necessarily is predicated on Rule 54(d) rather than on the

Act. As a result, even if it is assumed that a postjudgment motion

regarding costs constitutes a Fed. R. Civ. P. 59(e) motion when the en-

titkement to costs is part and parcel of the underlying claim (as when a

contract provides tor the award of costs as an element of damages in a

9

Indeed, two Terms after White was decided, this Court

itself applied White to a postjudgment motion involving

costs. In FCC v. League of Women Voters, 468 U.S. 364

(1984), the appellees contested the finality of a district

court judgment on the ground that the district court had

not disposed of a postjudgment motion concerning both

costs and attorneys’ fees (id. at 373-374 n.10). This Court,

relying in part on White, held that the pendency of the

postjudgment motion did not affect the Court’s jurisdic-

tion to consider the appeal pursuant to Rule 11.3 of the

Rules of this Court, because the “issue of whether ap-

pellees were entitled to recover attorney’s fees and costs”

was “wholly collateral” to the judgment (ibid.). In so

holding, the Court treated costs and fees identically for

jurisdictional purposes.°

b. The case against treating postjudgment requests for

costs as Fed. R. Civ. P. 59(e) motions is if anything

stronger than the case against so treating post judgment fee

motions. The Federal Rules of Civil Procedure

contract action), this is not such a case. For that reason, we do not

believe that this petition need be held pending the Court’s decision in

Budinich.

6 The collateral nature of cost issues is further suggested by this

Court’s decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).

In Eisen, a district court ordered the defendants in a securities class ac-

tion to bear a portion of the costs of providing notice to class

members. This Court ruled that the district court’s order was im-

mediately appealable under the “collateral order” doctrine of Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The Court ex-

pressly held that the order assigning costs to the defendants “involved

a collateral matter unrelated to the merits of [the plaintiff’s} claims”

(417 U.S. at 172). While the consigerations that govern whether an

order is “collateral” under the Cohen doctrine may not be identical to

those governing whether an issue is collateral to the judgment for pur-

poses of Fed. R. Civ. P. 59(e), Eisen nonetheless reflects a basic

understanding that decisions regarding the allocation of costs are

generally distinct from decisions regarding the merits of the litigation.

10

themselves draw a sharp distinction between the judgment

on the merits and an award of costs. Fed. R. Civ. P. 54(d)

provides that “[c]osts may be taxed by the clerk on one

day’s notice” and that, “[o]n motion served within 5 days

thereafter, the action of the clerk may be reviewed by the

court.” Rule 54(d) thus contemplates that applications for

costs will be presented in the first instance not to the:

district judge but to the clerk, and that the district judge

will not take up the issue at all unless the losing party

makes a timely motion for him to do so. See 10 C. Wright,

A. Miller & M. Kane, Federal Practice and Procedure:

Civil § 2679, at 396 (2d ed. 1983) (footnote omitted)

(“{NJothing normally can come before the court until the

clerk has acted and an objection has been made.”); Com-

ment, Taxation of Costs in Federal Court—A Proposal,

25 Am. U.L. Rev. 877, 881-883 (1976). In turn, Fed. R.

Civ. P. 58 provides that “[e]ntry of the judgment shall not

be delayed for the taxing of costs.” Rule 58, like Rule

$4(d), thus “attempts to divorce the process of entering

judgment from that of determining and assessing the

costs.” C. Wright, A. Miller & M. Kane, supra, § 2679, at

392: see Lucas, 729 F.2d at 1300. In contrast, the Fifth

Circuit’s decision here treats a routine postjudgment ap-

plication for costs not as a collateral proceeding following

from the judgment, as contemplated by Rules 54(d) and

58, but as a request for modification of the judgment

itself.

The Fifth Circuit adopied the jurisdictional rule applied

in this case in large part because it believed that a “bright-

line” rule would be beneficial to litigants and the courts.

See Harcon Barge, 784 F.2d at 670. As a general matter,

we have no quarrel with the view that bright-line rules are

desirable to settle issues of jurisdiction. Indeed, where the

Federal Rules of Civil Procedure and Appellate Procedure

accommodate them, such principles serve important in-

terests of predictability and judicial economy. But the

Fifth Circuit’s proposed rule, which—as White con-

11

firms—is not compelled by the language or purposes of

Fed. R. Civ. P. 59(e), is not the only construction that pro-

vides certainty and predictability in this context. To the

contrary, White points to an equally clear (if narrower)

rule: postjudgment applications for costs predicated on

Fed. R. Civ. P. 54(d) are simply not Rule 59(e) motions,

regardless of how framed or when filed.’

Not only is the Fifth Circuit’s rule unnecessary, it may

create inequitable traps for the unwary. Under the deci-

sion below, whenever the losing party acts promptly to file

a concededly valid notice of appeal, the prevailing party

can force the losing party to file a second notice of appeal,

simply by miscasting a routine motion for costs under Fed.

R. Civ. P. 54(d) as a motion to alter or amend judgment

under Fed. R. Civ. P. 59(e). It is one thing to require a los-

ing party to comply with the strict letter of the rules in

order to perfect its right to appeal. Cf. Acosta v. Loui-

siana Dep’t of Health & Human Resources, No. 85-1500

(June 30, 1986). But it is quite another thing to require the

losing party, on pain of forfeiting all right to appeal, to

take reparative action because the prevailing party has

failed to follow the letter of the rules. Such an approach

will only encourage procedural irregularity and oppor-

tunistic behavior, not the “just, speedy, and inexpensive

determination of every action” that the Rules are designed

to secure. See Fed. R. Civ. P. 1.

’ In any event, the line drawn by the Fifth Circuit may well be less

bright than the court below believed. Because the Fifth Circuit felt

compelled by Fed. R. Civ. P. 60(a) to carve out an exception for mo-

tions filed within 10 days of judgment involving “clerical errors” (see

Harcon Barge, 784 F.2d at 669-670) the court’s rule invites litigation

over whether a particular error or Omission in a judgment is “clerical”

or not. Indeed, inasmuch as Rule 54(d) entitles the prevailing party to

costs “unless the court otherwise directs,” another court of appeals

plausibly might conclude that the omission of costs from the judgment

in a case like this one is a clerical error and hence that a motion for

costs like the present one should not constitute a Fed. R. Civ. P. 59e)

motion under the Fifth Circuit’s general rule.

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3. Because the Fifth Circuit’s decision is inconsistent

both with this Court’s precedents and with the Federal

Rules of Civil Procedure, and because the decision creates

a conflict among the courts of appeals, review by this

Court may be appropriate. We have some doubt,

however, that plenary review, as opposed to summary

disposition, is warranted.

Of course, the federal judicial system has an interest in

the uniform and proper interpretation and application of

the Federal Rules of Civil Procedure and Appellate Pro-

cedure. As a practical matter, however, the existence of a

circuit conflict over the present jurisdictional issue may

not result in intolerable confusion or inconvenience for

litigants. As long as each court of appeals takes a clear

position on the status of postjudgment cost motions under

Fed. R. Civ. P. 59(e), litigants may have adequate

guidance on how they should proceed to protect their right

of appeal in any given circuit. Given the clarity of this

Court’s reasoning in White, moreover, there is reason to

doubt that the Fifth Circuit’s error in this case will be

made by other courts of appeals.* In light of the other

demands on this Court’s time, the issue in this case may

not be sufficiently important to claim the Court’s plenary

attention. For the reasons given above, however, we

believe that the correct outcome in this case is clear — suffi-

ciently clear that the Court may find it appropriate to

reverse the Fifth Circuit’s decision summarily on the basis

of White.

* Respondents correctly note (Br. in Opp. 6) that in Charles v.

Daley, 799 F.2d 343 (1986), the Seventh Circuit formally adopted the

Fed. R. Civ. P. $9e) standards set forth by the Fifth Circuit in Har-

con Barge. See Charles, 799 F.2d at 347. Charles does not make clear,

however, whether the Seventh Circuit will apply Harcon Barge as ex-

pansively as the Fifth Circuit has done in this case. Although Charles

relied on Harcon Barge to classify a postjudgment motion regarding

attorneys’ fees as a Rule 59(e) motion, the movant in Charles was seek-

ing not only to alter a prior fee order but to intervene for the first time

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CONCLUSION

The petition for a writ of certiorari should be granted

and the decision of the court of appeals summarily re-

versed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DOUGLAS N. LETTER

ScoTT R. MCINTOSH

Attorneys

DECEMBER 1987

as a party defendant as well. See 799 F.2d at 344-347. In this and other

respects, the motion at issue in Charles was more closely tied to the

merits of the judgment than would be a conventional! postjudgment

application for attorneys’ fees or costs.

No other court of appeals decision has followed Charles in adopting

Harcon Barge. The other decisions noted by respondents (Br. in Opp.

6) have cited Harcon Barge only for the general (and unexceptionable)

proposition that timely postjudgment motions seeking reconsideration

of the correctness of the judgment come within the scope of Rule

§9(e). See, e.g., Skagerberg v. Oklahoma, 797 F.2d 881, 883 (10th Cir.

1986) (citing Harcon Barge for proposition that “a [timely] post-

judgment motion * * * that questions the correctness of a judgment is

properly construed as a [Rule 59%e)} motion to alter or amend judg-

ment”).

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